Tuesday round-up

Posted Tue, May 15th, 2018 7:19 am by Edith Roberts

Yesterday the Supreme Court made a dent in its backlog of decisions, issuing opinions in five cases. In Murphy v. National Collegiate Athletic Association, the court struck down the federal law that bars states from legalizing sports betting. Amy Howe has this blog’s opinion analysis, which first appeared at Howe on the Court. At The Hill, Lydia Wheeler reports that the decision “opens the door to legalized sports gambling nationwide.” Additional coverage comes from Pete Williams at NBC News, Kevin Daley at the Daily Caller, Adam Liptak and Kevin Draper for The New York Times, Richard Wolf for USA Today, Robert Barnes for The Washington Post, Lawrence Hurley at Reuters, Greg Stohr at Bloomberg, Peter Doocy for Fox News, Ariane de Vogue and Maegan Vazquez for CNN, David Savage for the Los Angeles Times, and Josh Gerstein and Ryan Hutchins at Politico, who report that “about 20 states have either enacted laws or introduced bill to legalize sports betting, all in anticipation of this moment.” At NPR, Nina Totenberg and others report that “[w]ith every player in the sports world seeing dollar signs, there is one problem player — the amateur athlete.” At Constitution Daily, Lyle Denniston writes that “[t]he decision … raised doubts about the Trump Administration’s power to compel states and cities to help enforce tight federal immigration restrictions – now being resisted by the so-called ‘sanctuary’ jurisdictions, and about the power of the federal government to stop states from allowing medical or even recreational use of marijuana.”

In McCoy v. Louisiana, the justices ruled 6-3 that a defense attorney in a capital case cannot concede a defendant’s guilt to the jury over the defendant’s explicit objection. Amy Howe analyzes the opinion for this blog, in a post that was first published at Howe on the Court. For the Associated Press, Mark Sherman reports that “Louisiana’s Supreme Court had been alone among the highest state courts to allow a lawyer to concede guilt in the face of a client’s objections.” Additional coverage comes from Lawrence Hurley at Reuters, Jordan Rubin at Bloomberg Law, Jess Bravin for The Wall Street Journal, Nina Totenberg and others at NPR, and Robert Barnes for The Washington Post, who reports that the court held that the decision to concede guilt “belongs to the accused alone,” “no matter whether the evidence of guilt is overwhelming or that it would be a good legal strategy.” Jaclyn Belczyk discusses the ruling at Jurist’s Paper Chase blog. At the Cato Institute’s Cato at Liberty blog, Jay Schweikert hails the decision “[a]s a small but important step toward restoring the centrality of the jury trial in our adversarial system of criminal justice.” At Crime and Consequences, Kent Scheidegger discusses McCoy and today’s other criminal-law opinions. Subscript’s graphic explainer is here.

Yesterday’s third opinion was in Byrd v. United States, in which a unanimous court held that a driver can object under the Fourth Amendment to a search of a rental car even when he is not listed on the rental agreement. Amy Howe has this blog’s opinion analysis, which first appeared at Howe on the Court. At CNN, Ariane de Vogue and Maegan Vazquez report that “[t]he ruling is a victory for privacy rights advocates who were concerned that police could find reasons to stop rental car drivers for minor infractions knowing that they could engage in searches without the driver’s consent.” Lauren Moxley discusses the case at The National Law Review. Another look comes from Akira Tomlinson at Jurist’s Paper Chase blog.

The justices also held unanimously in United States v. Sanchez-Gomez that defendants’ appeals challenging a federal district-wide policy of shackling them for pretrial proceedings became moot when their criminal cases ended before the court of appeals could render its decision. Howard Wasserman analyzes the opinion for this blog. At PrawfsBlawg, Wasserman observes that “[t]he opinion contains a fair bit of language emphasizing the individual nature of constitutional litigation, thereby supporting the view that injunctions must be particularized to the parties and not accord universal protection or limitations to non-parties.” Autumn Callan looks at the case for Jurist’s Paper Chase blog.

Finally, in Dahda v. United States, a unanimous court ruled that a judge’s wiretap orders that authorized interception outside the court’s territorial jurisdiction were not facially insufficient. Richard Re has this blog’s argument analysis.

The court also added two cases to its docket for next term. Amy Howe covers the order list for this blog; her coverage first appeared at Howe on the Court. Another look at the new cert grants comes from Autumn Callan at Jurist’s Paper Chase blog.

Briefly:

At Empirical SCOTUS, Adam Feldman demonstrates that even after the five decisions released yesterday, “the Court is still behind its output every other year under Chief Justice John Roberts.”

At Law360 (subscription required), Amy Lee Rosen reports that “[t]he IRS has insisted further review by the U.S. Supreme Court is not warranted for a lower court’s finding in support of the government in its denial of a $199 million tax deduction for a Pennsylvania-based electricity supplier, saying legal precedent was correctly applied and no circuit conflicts existed.”

For The New York Times, Adam Liptak wonders whether Justice Anthony Kennedy, “a fierce critic of solitary confinement,” may want to review two cases that ask whether “prisoners held in solitary confinement have a right to regular outdoor exercise.”

In an op-ed for The Hill, Wen Fa and Deborah LaFetra weigh in on Minnesota Voters Alliance v. Mansky, which asks whether a Minnesota law banning political apparel at polling places is facially overbroad under the First Amendment, asserting that “[w]henever politicians and bureaucrats are tempted to put their own convenience or agenda over the First Amendment’s protection of core rights of expression, they need to be dressed down.”

At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and Aaron Barnes urge the justices to review a challenge by hair-braiders to a state licensing scheme, asserting that “[b]ecause the right to earn a living is one of the basic rights that our Constitution was formed to protect,” “courts must meaningfully examine government incursions against this essential liberty, regardless where in the Fourteenth Amendment it finds the relevant right.”

At LaborNotes, Donnie Killen lists several ways in which Mark Janus, the plaintiff in Janus v. American Federation of State, County, and Municipal Employees, Council 31, a First Amendment challenge to an Illinois law allowing public-sector unions to charge nonmembers for collective-bargaining activities, “benefits from union representation.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case.]

In an op-ed for The Hill, Richard Bernstein maintains that “a ruling upholding the travel ban [in Trump v. Hawaii] would have far-reaching consequences for banning immigrants and travelers from all over the world and for our constitutional system itself.”

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Current Relists

Conference of November 16, 2018

Andersen v. Planned Parenthood of Kansas and Mid-Missouri Whether the provisions of the Medicaid Act that require participating states to include in their plans the ability of eligible individuals to obtain services from any “qualified” provider, 42 U.S.C. § 1396a(a)(23), but grant states broad authority to exclude providers for violating state or federal requirements, 42 U.S.C. § 1396a(p), indicate that Congress clearly and unambiguously intended to create an implied private right of action to challenge a state’s determination that a provider is not “qualified” under the applicable state regulations.

City of Escondido, California v. Emmons (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.

Fleck v. Wetch (1) Whether it violates the First Amendment for state law to presume that the petitioner consents to subsidizing non-chargeable speech by the group he is compelled to fund (an “opt-out” rule), as opposed to an “opt-in” rule whereby the petitioner must affirmatively consent to subsidizing such speech; and (2) whether Keller v. State Bar of California and Lathrop v. Donohue should be overruled insofar as they permit the state to force the petitioner to join a trade association he opposes as a condition of earning a living in his chosen profession.

Major Cases

In re Department of CommerceWhether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking Executive Branch officials—when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Timbs v. IndianaWhether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.

Apple Inc. v. PepperWhether consumers may sue anyone who delivers goods to them for antitrust damages, even when they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense.